Volume 44 — New Jersey Law Reports

This was an action for money had and received, brought by the State of New Jersey against the secretary of state by direction of the legislature. It was an action of assumpsit founded upon the obligation imposed by law on the secretary of state to pay over all the money collected by him as agent of the state. The declaration contained a special count for money had and received, and to this was joined the common counts.

<p>In debt.</p> <p>Argued at November Term, 1882, before Beasley, Chief Justice, and Justices Scudder, Reed and Mague.</p>

Suit on note endorsed by defendant for- the accommodation of the maker. Suit brought in Monmouth Pleas on this note by the bank, being holder; the summons was returnable April 18th, 1879, and on the same day the declaration was filed. There being no plea or demurrer, judgment by default was entered September 16th, 1879.

<p>Motion to set aside a judgment.</p>

On demurrer to pleas. The defendants, Mahlon D. Dickinson and Samuel M. Lippincott, impleaded with Benjamin F. Dean, plead four pleas to the declaration filed in the name of the Ordinary in an action against them on a guardian’s bond, dated December 26th, 1860, in the penal sum of $3000. Demurrers to the third and fourth pleas, joinders to these demurrers, and replications to the first and second pleas were filed. The defendant, Benjamin E. Dean, guardian, made no defence.

On rule to show cause certified from the Hudson Circuit Court. By an order of the Chancellor, dated January 20th, 1875, Michael Sandford was appointed receiver of the Union Bank of Jersey City, an insolvent corporation. A subsequent order was made January 10th, 1881, removing Sandford from office, as receiver, and appointing the plaintiff, William H. Corbin, in his stead.

<p>In trespass. On rule to show cause.</p>

This is an action in trespass for the taking of oysters lying in Raritan bay. The declaration is as follows: Monmouth Circuit Court of the 14th day of May, 1881.

<p>When there is an express agreement between solicitor and client, whereby solicitor undertakes to do certain services respecting client’s interest in an estate for a certain sum stipulated to be paid by client, and in the performance of the duty so undertaken the sojicitor takes proceedings in client’s behalf in the Court of Chancery, which result in settling the estate and severing and securing client’s share, and entitle him, under the agreement, to the specified compensation; in an action therefor the client ought to be credited with a sum allowed by the Chancellor to the solicitor in the proceedings in chancery but of the general fund of the estate, when it appears that the services rendered by the solicitor in those proceedings were such as were included in his contract with his client.</p>

The declaration in this case was founded upon a policy of insurance and was in the ordinary form.

<p>In error to the Essex Oyer and Terminer.</p>

<p>On rule to show cause.</p>

On certiorari to Essex Common Pleas. The prosecutrix sued the defendant in trover to recover a wagon. The court certified and returned with the writ the following facts: The prosecutrix, Ella White, was the owner of the wagon, which she purchased in October, 1878. She allowed her husband, Alexander White, to use the wagon as his own in his business, for the support of the family, consisting of husband and wife and three children.

<p>The charter of a city gave the common council power to pass ordinances to license and regulate or prohibit inns or taverns, restaurants and beer saloons, provided that no license should be granted by the board of councilmen, except upon a recommendation in writing, signed by at least ten freeholders, who shall not have recommended for license any other person who, at the time of the presentation of such recommendation, is awaiting the action of the board of councilmen, upon an application for a license, or who is licensed by said board. Held—</p> <p>1. That applications for licenses must be made to the common council, and the propriety of granting a license must be passed upon by the common council, and that the power to license could not be delegated by ordinance to the mayor or any one else.</p> <p>2. That the power of the common council was limited to licensing beer saloons—places occupied by the applicants in which the business of selling is to be carried on as a regular business—and that the common council had no power, by a license or permit, to authorize the sale of such beverages at any other place than a regularly-licensed beer saloon.</p> <p>3. That an ordinance authorizing the mayor, upon recommendation of the common council, to issue a permit for the sale of ale, beer and other malt beverages, at picnics or social gatherings, for a license fee, was illegal and void.</p>

<p>Where a sidewalk is laid, tbe street being unpaved, and a gutter is necessary for the security of tbe sidewalk, tbe expense of laying the gutter is part of the expenses of constructing tbe sidewalk, and may be included in tbe assessment of tbe cost and expenses of the sidewalk.</p>

<p>1. The provision in the city charter granting to common council the right not only to regulate and prohibit the sale of spirituous liquors, but also to fix the amount of the assessment to be paid for license, and directing that it be paid into the city treasury for the use of the city, confers the taxing power for revenue purposes, and distinguishes this, case from Műhlenbrinck v. Commissioners, 13 Vroom 364.</p> <p>2. The complaint for violating the city ordinance must state to whom the-liquor was sold, or allege that it was sold to a person unknown.</p> <p>3. The city charter provides that on conviction for violating a city ordinance the defendant may be fined, and, if the fine is not paid, be imprisoned for twenty days. There is not error in entering the judgment in the language of the statute. If, after being committed, the defendant pays the fine before the expiration of the twenty days, he. may raise, on habeas corpus, the question whether he is entitled to be at once discharged from custody.</p> <p>4. A conviction in the city court of Plainfield is reviewable only by appeal to the Union Common Pleas.</p> <p>5. The act of 1874, making the exclusive mode of review by certiorari to the Union Circuit Court, is unconstitutional. The legislature cannot confer upon the Circuit Courts the power to review the proceedings of inferior tribunals by certiorari.</p> <p>6. The Supreme Court is the sole depositary of the prerogative writs of certiorari, mandamus and quo warranto. The single exception is in suits, originating in justices’ courts.</p>

<p>1. The act of 1879, (Pamph. L., p. 115,) increasing jurisdiction of justices of the peace, is constitutional.</p> <p>2. Even though the covenant of a married woman be held void for coverture, the covenant of her surety is enforceable.</p> <p>3. Where it is essential to the validity of a writing that it he executed under seal, authority to an agent to execute it must be likewise under seal. But where a seal is not vital to the contract, and the agent has power to execute it without seal, it operates as a simple contract» although executed under seal.</p> <p>4. The written lease in this case is in effect an agreement not under seal, on which the surety has written an agreement under seal that he will pay the rent in default of payment by the lessee. This suit against the surety for the rent was brought after the lapse of more than six years from the due-day of the rent. Held, that although the principal debtor might have pleaded in bar actio non accrevit infra sex annos, on his contract not under seal, the action against the surety on his contract under seal will not be barred until the lapse of sixteen years.</p>

<p>1. A newspaper which has been published for two years in the city of Hoboken is entitled to a place in that class of papers from which the selection must be made for the publication of the proceedings of common council, although it is not authorized to publish the laws of this state.</p> <p>2. The office of the “Hoboken Advertiser” is in Hoboken, where those who own and conduct it reside. The entire matter for the paper is composed, set up and placed in forms in Hoboken, after which the forms are sent over to New York city, where the mere press-work is done, and the papers are then brought back to the office in Hoboken, from whence they are issued to subscribers. Held, that this paper is, within the reason and spirit of the law, “printed and published” in Hoboken.</p>

<p>On certiorari. In matter of landlord and tenant.</p>

<p>On certiorari to review sale for taxes.</p>

<p>1. The provisions of the act entitled “ An aot to enable cities to supply the inhabitants thereof with pure and wholesome water,” approved April 21st, 1876, is not operative in Gloucester City.</p> <p>2. In elections of a special character, where time and place are not fixed by law, notice of the election must be given.</p> <p>3. In such case, the direction to give notice is mandatory.</p> <p>4. Notices not stating the place or places where polls would be opened are insufficient and election thereby rendered invalid.</p>

<p>1. Sales of land for taxes in the township of Galloway, in the county of Atlantic, made under a special statute, declared legal.</p> <p>2. Advertisement to sell tract, or so much thereof as may he necessary to pay the tax, is sufficient.</p>

<p>1. If a note payable to order be not endorsed by the transferrer, the holder cannot sue in his. own name, for, although the holder may possess the entire beneficial interest, the legal title is still outstanding in the transferrer, and his name should be used to maintain the suit.</p> <p>2. If no endorsement be on a note payable to order, and it does not appear on face of note that the payee is agent of plaintiffs, the suit cannot be maintained in their name.</p> <p>3. Where objection is made in the court for the trial of small causes, and no motion made to amend there, amendment cannot subsequently be made.</p>

<p>Application for mandamus.</p>

<p>1. Where deduction from tax is claimed by the owner of mortgaged premises, on account of mortgage debt, it is not necessary that such claim be in writing under oath.</p> <p>2. If deduction be claimed by land-owner and allowed by the assessor, the tax upon whole amount of mortgage debt should be assessed against the holder of mortgage. '</p>

<p>1. Owners of personal property at time of the assessment are liable for tbe tax tbereon.</p> <p>2. Subsequent change of duplicate not legal.</p>

<p>1. The contract the filing of which, under the lien law, protects against the lien of other creditors, must be between parties who in verity, and not in form merely, hold towards each other the relation of contracting parties. It must be a real, not a fictitious bargain.</p> <p>2. It is a perversion of tire act to use it as a scheme to protect the contractor from the payment of his debts due material-men.</p> <p>S. A paper filed as a contract may serve as a consent in writing of the legal owner to erect the building, when, by its terms, the expense is not to be borne by the licensee.</p>

<p>On certiorari to remove proceedings for violation of ordinance in Asbury Park.</p>

<p>The issuing of an execution is a proceeding entirely distinct from tlie judgment, and irregularities in the issuing of the execution cannot affect the judgment in anywise.</p>

<p>1. A declaration in a general law that all acts or parts of acts, whether local or special, or otherwise, inconsistent with its provisions, are repealed, will repeal inconsistent provisions in prior special acts.</p> <p>2. A special law authorized the township of North Brunswick to convey to the city of New Brunswick a poor-farm owned by the former, and situate within its limits, and declared that the farm should be liable to taxation by the township so long as it should be embraced within it; and under this law the conveyance was made. Held, that the legislature could, constitutionally, repeal this power of taxation. n</p>

<p>On certiorari bringing up proceedings to lay out a public road in Camden county.</p>

<p>On certiorari.</p>

<p>On rule to show cause why the satisfaction of a judgment should not be vacated.</p>

<p>On error to the Supreme Court.</p>

<p>In error to the Supreme Court. The facts appear fully in fhe opinion of the court.</p>

<p>In error to the Supreme Court.</p>

<p>In error from Hudson Circuit Court.</p>

<p>An application was made for insurance under the regulations of the company. It required that the questions put therein should be truly answered as a preliminary to the issuing of the policy. The application contained among others, the following questions : “ Is there any encumbrance on the property ? ” and this was followed by the requisition, “ If mortgaged, state the amount.” Over against the question the agent of the company wrote, “Expects to borrow $2500 and use the policy as collateral,” and opposite the following requisition he wrote nothing, but made a dash only. When the application was made the property was subject to four mortgages, amounting to $3700. -Held, that the policy, having been issued upon an application in which the question as to the encumbrances had been left unanswered, without intention to deceive, there was no warranty upon that subject.</p>

<p>Objections to the sufficiency of the proof of a plea of privilege must be made at the trial. If not taken then, they will be regarded as having been waived.</p>

William Mahon brought suit before Thomas Aldrich, a justice of the peace in and for the county of Hudson, against Erederick W. Payne. The summons issued September 12th, 1878, and was returnable at the office of said justice, 599 Newark avenue, Jersey City, on September 18th, 1878. The action was an action of debt, to recover the sum of $5, money loaned by plaintiff to defendant.

<p>Error to the Supreme Court. For the opinion of the Supreme Court, see 14 Vroom 589.</p>

On error to the Supreme Court. This was an action on a policy of insurance against loss by fire, issued by the defendant in error. The case was tried at the Essex Circuit, before Mr. Justice Depue and a jury. Upon the evidence for the plaintiff being closed, the justice ordered that the plaintiff be non-suited. To this, a bill of exceptions was taken, and the judgment on non-suit entered on that order is now sought to be reversed.

<p>On error to the Supreme Court. For opinion of Supreme Court, see 14 Vroom 373.</p>

<p>From the Cape May Oyer and 'Terminer. Motion for a new trial sent to this court for its advisory opinion.</p>

The declaration exhibited these facts: That on the lst'day of April, 1869, the plaintiff was duly appointed and commissioned the law judge of the Court of Common Pleas of the county of Middlesex, and entered upon the execution of his office, Ac., and performed all its duties until the 1st day of April, 1874; that after such appointment and commission, and after the making of the act of the legislature approved March 18th, 1869, entitled, Ac., and which provided that the…

<p>On demurrer to declaration. The facts appear fully in the opinion of the court.</p>

On rule to show cause. This action was brought upon an agreement of which the following is a copy: “ I, Charles Weiss, promise to pay to Mrs. Elizabeth Brock the sum of six hundred 00/ioo dollars in case I should not be compelled, by Starts S. Morris to pay the annually rent for the park, lying and being between Morris avenue and Bruce street, hording on Court street, to wit, for the term from the first of May, 1872, to the first day of May, 1873.

<p>On demurrer to declaration.</p>

<p>1. Evidence that the principal instructed the agent to be careful is not relevant to the inquiry whether the agent was in fact negligent.</p> <p>2. Evidence of ineffectual efforts to sell one piece of standing timber is not relevant to an inquiry as to the value of another.</p> <p>3. Evidence showing that a fire might have been caused by a spark from a locomotive and tending to disprove the presence of any other cause, will warrant a conclusion that a spark did escape.</p> <p>4. Proof that a fire originated in a spark from an engine is prima facie evidence of negligence in those controlling the engine, by force of the statute of this state.</p> <p>5. A railroad company is bound to employ the most approved safeguards against the escape of fire from locomotives.</p> <p>6. In the rule which limits a recovery for a tort to those damages which are its natural and proximate effects, the natural effects are those which might reasonably be foreseen, those which occur in an ordinary state of things, and the proximate effects are those between which and the tort there intervenes no culpable and efficient agency. A mere failure by third parties to extinguish a fire started through the negligence of the defendant, is not such an agency.</p>

<p>In covenant. On case certified from the Morris Circuit.</p>

<p>On rule to show cause.</p>

<p>1. The obligation of a contract which, when made, was unenforceable by reason of some irregularity, but which has' been validated by reason of a subsequent law, is protected by the constitution to the same extent as if the contract had been strictly legal at first.</p> <p>2. The obligation of such a contract includes the remedies which would have been available for its enforcement if it had been valid when made, or such other remedies as may have been lawfully substituted therefor.</p>

<p>In scire facias upon an alleged forfeiture of a recognizance, entered into before a justice of the peace, for the appearance of a criminal at the Oyer, it must be averred that the so-called recognizance was filed in the court where the. appearance was to be made.</p>

On demurrer to the declaration. The plaintiff brings an action against the defendants for damages for permissive waste.

This is a rule to show cause why a new trial should not be granted. The action is brought upon an official bond, given by Charles Wurtz, as treasurer of the town of Union. Wurtz had been elected, annually, from the year 1873 to 1879. This action is upon the bond given for the year 1879. The official year began on the last Monday in April. The fiscal year ran from March 14th. There are actions pending also upon the bonds of several preceding years.

On rule to show cause why a new trial should not be granted. The action was upon a policy of insurance written by the defendants upon property described in the policy as owned by the plaintiff. At the close of the case the trial justice directed a verdict for the plaintiff, and gave a certificate for review with a rule to show cause why the verdict should not be set aside and a new trial granted.

<p>On rule to show cause why a new trial should not be granted.</p>

<p>A motion to set off a judgment obtained in this court against a judgment in the Court of Common Pleas must be made in that court where the judgment against the mover was obtained.</p>

<p>1. An attorney-at-law of the State of New York, employed there to draw . a contract for building on lands in New Jersey, does not, by accepting such employment, impliedly undertake that he is acquainted with the laws of this state respecting the necessity of filing of such contracts for protection against claims of workmen and material-men under the mechanics’ lien law.</p> <p>2. An attorney-at-Jaw who accepts an employment to draw such a contract does not thereby impliedly undertake to file it. In the absence of an express undertaking to file it, he will not be liable for failure so to do. Quiere, whether, when so employed, he would be liable for failing to advise his client of the risk of not filing such a contract.</p> <p>3. Even if liable for breacli of duty in respect to filing such a contract, the owners, who have been required to pay a sub-contractor’s claim, cannot recover of the attorney if they have discharged the builder, who is primarily liable, or liave accepted satisfaction from him.</p>

<p>On rule to show cause why a new trial should not be granted</p> <p>Argued at February Term, 1882, before Justices Dixon Reed and Magie.</p>

<p>1. A contract for building on land may be abrogated or abandoned, either by the express agreement of the parties or by the implication arising from conduct inconsistent- with its being still in force. But mere deviations and changes of plan will not imply abrogation or abandonment when the contract expressly provides that such deviations and changes may be made.</p> <p>2. When a contract for building on land has not been so performed as to justify a recovery thereon, a recovery in assumpsit on the common counts, for the work and materials used in the erection, will only be permitted when the owner has actually accepted the building.</p> <p>3. Such acceptance may be express or implied from circumstances; mere occupation of the' building does not necessarily imply such acceptance.</p> <p>4. - Damages of a defendant cannot be recouped under section 129, (Practice, Rev. 868,) unless the notice required has been filed with the plea and the damages arise out of the very contract sued upon.</p>

On rule to show cause. John D. Harrison, sheriff of the county of Essex, in November, 1876, levied on certain blue stone as the property of Cornelius Hannon, Jr. The levy was made under an execution issued on a judgment recovered in this court by Cornelius Hannon, Sr., against Cornelius Hannon, Jr., for about $12,000. The property levied on had, a short time before the levy, been bought by Hannon, Jr., of John Maxwell, on credit.

<p>On certiorari to set aside assessments of taxes and declarations of sale.</p>

On certiorari. Gorman, on September 5th, 1876, recovered a judgment in an action of assumpsit against Gibson. Execution was issued and returned unsatisfied, and on December 27th, 1876, a receiver was appointed pursuant to the act concerning executions. Rev., p. 393. August 24th, 1878, Gibson was adjudicated a bankrupt, and on April 30th, 1880, received his discharge.

On motion to set aside a non-suit. The plaintiffs, on January 31st, 1880, took a lease from the defendants of a certain brick factory in the city of Newark, for a term commencing April 1st, 1880, and expiring April 1st, 1886.

<p>1. Under the fifth section of the act of 1875, p. 624, the justice of the Supreme Court to whom the freeholders made their report, had power to refer the matter back to them, that they might certify as to the basis upon which they had made their assessment.</p> <p>2. The sewer, as originally constructed, deposited the flowage where it was a nuisance, which rendered it necessary to continue it to the Hudson river. Lands which had been assessed for the construction of the original sewer were, therefore, subject to further assessment for the bénefit conferred by the continuation, which made the original sewer available.</p> <p>3. The assessment was made in due form, the freeholders certifying that the lands so assessed were benefited to the extent of the burden laid by them, over and above the amount of the prior assessment.</p> <p>4. The assessment is authorized by an act passed in 1878, p. 344, which is a general law.</p> <p>5. Property owned by a municipal corporation and used for public purposes, is not subject to assessment for benefits for such improvements, in the absence of language in the statute indicating an intention to tax it. In this case there is an absence of such language.</p>

<p>1. The power of a municipal corporation to pass a by-law or an ordinance which establishes a rule interfering with the rights of individuals or the public, must emanate from the creating body, and clear authority must be found for it in the legislative enactment under which the corporation exercises its functions of government.</p> <p>2. A provision in the town charter that the common council may pass and enforce ordinances and by-laws for the suppression of gambling-houses, and such other by-laws and ordinances for the peace and good order of the town as they may deem expedient, not repugnant to the constitution or laws of this state or of the United States, does not warrant the passage of an ordinance forbidding the keeping of a billiard table for hire.</p> <p>3. The general words of the statute are used in their ordinary acceptation, and authorize any such local legislation as will prevent disorder or disturbance or breach of the peace.</p> <p>4. It having been decided in this court that the practice permitted by the keeper of a ten-pin alley that the loser should pay for the use of the alley, did not subject his house to indictment as a common gaming-house, the keeping of a billiard table in the same manner must be regarded as a lawful business, which cannot be outlawed by the common council under the authority given them by the legislature.</p>

<p>On certiorari. In matter of taxation.</p>

<p>1. The necessity for the affidavit stating the consideration of a chattel mortgage and the amount due thereon, as required by the act of 1876; is not dispensed with by the act of 1880, p. 266.</p> <p>2. The special act of 1873, constituting two District Courts in Newark, is not repealed by the second section of the act of 1877, p. 234.</p> <p>3. The fourth section of the act of 1878, p. 162, is constitutional. Although special in form, it is general in effect. It removed dissimilarity and created entire harmony in the law on the subject to which it pertained, and thereby subserved the object of the constitutional amendment.</p>

<p>On certiorari. In matter of road.</p>

<p>Certiorari to bring up proceedings of court martial.</p>

<p>1. Tlie act to amend and revise the charter of the town of Lambertville, passed April 15th, 1868, (Pamph. L., p. 963, $ 26,) which gives to the common council the sole and exclusive power to grant licenses to persons to keep inns and taverns within said town, is not repealed by the act passed March 13th, 1879, entitled “ A supplement to an act'entitled ‘An act concerning inns and taverns,1 approved April 17th, 1846.”</p> <p>2. The latter law, giving the Courts of Common Pleas the power to grant such licenses, being restricted to cities, towns and counties by populations which indicate but three small towns in one county, without any apparent distinction which will, in any reasonable degree, account for such restricting, is unconstitutional, being a private, local or special law, regulating the internal affairs of towns and counties.</p>

<p>1. The Court of Common Pleas has the power to grant a new trial after the trial of an appeal from the court for the trial of small causes. Pamph L. 1881, p. 259.</p> <p>2. Where a new trial has been granted after the trial of an appeal, this court will not review such discretionary order on certiorari, where it does not appear that the court below has exceeded its jurisdiction, or assumed a power not warranted by law.</p>

<p>On certiorari to the Court of Common Pleas of Middlesex county.</p>

On petition for mandamus to compel the defendant, as treasurer of the city of Elizabeth, to pay to the relator, collector of the county of Union, $85,652.12, the quota of state, school and county taxes du'e the relator as collector for the year 1881, with interest from October 22d, 1881. On the return of the rule to show cause why the writ should not issue December 3d, 1881, the respondent paid the principal sum, $85,652.12, but refuse to pay interest.

<p>On certiorari. In matter of road.</p>

<p>Money due for pensions, while it remains in the hands of the disbursing officer or agent for distribution, or while in course of transmission to the pensioner, is not liable to be seized by creditors under any legal process. After it has come to his hands it is so liable, like any other funds of the debtor.</p>

<p>1. The Common Pleas may reinstate an appeal dismissed for apparently good cause, on discovering mistake of law or of fact, or where the appellant has a meritorious case.</p> <p>2. The evidence upon which the court reaches its determination not being part of the record, this court will not, on certiorari, look into it or consider its weight or sufficiency..</p>

<p>On application for mandamus.</p>

This writ brings up certain proceedings of the board of chosen freeholders of the county of Hudson, by which the said board accepted the resignation of certain officers and employes of the county, and afterward re-appointed the same persons to the same positions, respectively, for the term of one year, at a certain compensation.

This writ brings up the action of the director at large of the board of chosen freeholders of Hudson county in appointing standing committees, and the designation of certain members of the board, of whom the prosecutor is one, as members of said committees.

<p>On error to the Supreme Court. For opinion of Supreme Court, see 14 Vroom 338.</p>

There were two of these cases argued together, the one being on a certiorari, the other on an application for a mandamus.

<p>On error to the Circuit Court of the county of Hudson.</p>

<p>1. An action for libel can be maintained against a corporation.</p> <p>2. Previous or subsequent publications are admissible in evidence for tbe purpose of showing tbe temper of the defendant’s mind in the publication complained of, and it makes no difference that such publication is one, by reason of tbe bar of the statute of limitations, upon which no action can be maintained.</p> <p>S, If the previous or subsequent publication be a privileged one, it will be no evidence of malice, and conseouently will have no weight whatever.</p>

<p>In error to the Supreme Court.</p>

<p>In error to the Supreme Court. 14 Vroom 391.</p>

Suit for seduction. This was an action brought by Archibald E. Ogborn against Isaac P. Francis, for the seduction of his daughter, Elizabeth Ogborn, a minor. The case was tried before Justice Scudder and a jury at the October Term, 1881, of the Monmouth Circuit, and a verdict of guilty rendered, and the damages assessed at $3000. On rule to show cause why the verdict should not be set aside.

This was an action of assumpsit, brought by the board of chosen freeholders of the county of Somerset; against Daniel Cory. . The declaration contained simply the common counts Upon demand a bill of particulars was furnished, and the amount claimed was $6656.56, embracing bills between May 4th, 1868, and January 5th, 1871.

This was an action of replevin. The declaration was in the usual form, and the defendant pleaded property in himself as the administrator of J. T., deceased, and upon this allegation issue was taken. At' the trial, the plaintiff was sworn as a witness, and, notwithstanding the objection of the defendant, was permitted to testify to the admission of J. T. that the property in controversy did not belong to him but to a pei’son from whom the plaintiff derived title.

The substance of the declaration was to the effect following, viz.: That for a long time prior to and on the 31st of October, 1881, the defendants had been and were the directors of the Mechanics’ National Bank, of Newark, and had taken the oath of their office as prescribed in section 5147 of the Revised Statutes of the United States, that they severally would, so far as the duty devolved upon them respectively, diligently and honestly administer the affairs of the said…

In trover. The plaintiff, on December 7th, 1881, sold to one De Leon three hundred and sixty bags of dried blood. The goods were delivered in lots, from time to time. De Leon became embarrassed in his business, and on December 16th, 1881, sold the above-mentioned goods, which had been mixed fertilizers, to one Levy. The bona fides of this sale to Levy was not questioned. He took possession under it.

<p>On error to the Mercer county 'Quarter Sessions.</p>

<p>On demurrer to plea.</p>

<p>1. Under the “ Malt Liquors Act,” approved April 4th, 1872, {Rev., p. 494, $ 13,) a single sale of any of the liquors mentioned without license, makes the seller liable to indictment as keeper of a disorderly • house.</p> <p>2. The act is operative throughout the state except in townships, cities and incorporated towns, where laws are in force regulating the sale of such liquors, outside of inns and taverns.</p> <p>3. Authority conferred upon a town to prohibit all traffic in or sale of intoxicating drinks, with authority to license, regulate or prohibit inns and taverns—Held not to embrace authority to. regulate the sale of liquors outside of inns and taverns.</p>

<p>1. The assignee of the assured in a policy of fire insurance may sue thereon in his own name, by force of our statute (Rev., p. 850, section 19 of the Practice act.)</p> <p>2. The assignee’s suit must be of the same style as that of the assured should have been if there had been no assignment.</p> <p>3. The policy was to become void upon a sale or alienation of the property. At the time of the fire, a decree in chancery for sale of the property on foreclosure had been entered, and the property had been put up for sale by the sheriff and bid in bv the mortgagee, but no deed had been delivered, and because of the fire the mortgagee refused to accept a deed. Held, that the policy had not become void by sale or alienation, and that the original owner had an insurable interest at the time of the fire.</p> <p>4. An agent may take out, in his own name, a policy of fire insurance on his principal’s property for the principal’s benefit, and it will be valid if the agent’s act be either originally authorized or subsequently sanctioned before or after the fire.</p> <p>5. An assignment of a policy “ as collateral security only, first to A and then to B and assigns,” A and B being holders respectively of a first and a second mortgage—Held, to confer upon A and B a joint right of action, the proceeds of suit to be applied to the payment, first, of A’s mortgage, and secondly of B’s.</p> <p>6. On a rule to show cause why a verdict should not be set aside, the court will not sustain a verdict upon a view of the law contrary to that adopted by the judge at the trial, if to do so will deprive the party against whom the verdict was rendered of the opportunity of reviewing in the court of last resort the opinion of this court</p>

<p>On rule to show cause.</p>

<p>1. Duties required of an incorporated company are in the nature of conditions annexed to the grant of the franchise. Such conditions may he waived or released, or a new grant made, free therefrom, but the intent so to do must be expressly declared or plainly to be inferred from some legislative act.</p> <p>2. The condition contained in defendant’s charter requiring the turnpike road thereby authorized to' be improved in a certain mode before tolls could be exacted, held to have been discharged by a supplementary act, giving power to take tolls In a new mode inconsistent with that previously prescribed, and plainly justifying the inference that there was a legislative intent either to acknowledge the previous performance of the conditions or to waive the same.</p>

An indictment in the Passaic Oyer and Terminer charged’-' defendant with having maintained a raceway along and adjoining public streets in Paterson, without such guards as were-proper to prevent persons passing upon such streets from falling therein, and averred it was defendant’s duty to maintain such guards.

In assumpsit. Plaintiff’s action was brought in the Somerset Circuit. It was assumpsit, and the declaration contained only the common counts. Defendant pleaded (among other pleas) the statute of limitations.

<p>In trespass. On rule to show cause.</p>

On application to set aside the election. The St. Lawrence Steamboat Company is a corporation organized under the general corporation law of this state, by a certificate recorded in the Hudson county clerk’s office February 17th, 1881, and filed in the office of the secretary of state February 21st, 1881. On the 22d of March, 1882, a regular meeting of the stockholders was held at Jersey City, for the election of directors.

<p>On rule for the application of moneys raised under executions.</p>

On motion to strike out pleas. In dower, the defendant pleaded (1) that the demandant was dead at the time of issuing the writ; (2) that she was not lawfully married, &c.; and (3) that she had deserted her husband and lived in adultery with one J. Gr. The first-mentioned plea commences with the allegation that the defendant “ comes and defends the wrong and injury when,” <fcc., and concludes with a prayer of judgment that the writ might be quashed.

On rule to show cause why a mandamus should not issue. The defendant is the clerk of the county of Burlington.

<p>1. In ejectment, if the declaration he filed in season, and a copy he served, the defendant must plead within thirty days after service, if the copy have endorsed upon it the notice required by section 105 of the Practice act. Rev., p. 327.</p> <p>2. The notice required to he endorsed on the copy of the declaration served under section 105 of the Practice act, need not contain the file-mark of the declaration, nor state the date of the service.</p> <p>3. A plaintiff in ejectment, having a defeasible title, is entitled to a general judgment, if his title has not expired or been determined at the time of the trial. Section 43 of the Ejectment act, which authorizes a special judgment, applies only to cases in which the plaintiff’s title has, in fact, expired pending the suit. Rev., p. 332.</p> <p>4. Section 44 of the Ejectment act, which gives conclusive effect to a judgment in ejectment, relates only to the right of possession and the title as they existed at the termination of the suit. A judgment in ejectment will not conclude the defeated party as to a title or right of possession subsequently accruing.</p> <p>5. A plaintiff in ejectment is entitled to have hi» costs awarded to him in the ejectment suit, on a judgment by default, only where it appears by the affidavit of service of the summons, that the defendant was, at the time of the service, in actual possession of the premises claimed, or some part thereof. If it does not so appear, the plaintiff must recover his costs in the ejectment suit in an action for mesne profits.</p>

<p>1. By the act of 1870, {Pamph. L., p. 809, $ 1,) the county collector of Hudson county was appointed treasurer of the road commissioners named in the act of 1869, (Pamph L., p. 1080,) in the place of Ackererson, and the subsequent legislation did not restore Aekerson to the office. See Pamph. L. 1871, p. 997, $ 7; Pamph. L. 1872, p. 794, $$ 2, 6.</p> <p>2. In accepting the office of county collector, the statute cast upon the defendant the office of treasurer of the road commissioners, which is inseparable from it. He cannot perform the duties of the former office without entering upon and discharging the duties of the latter.</p>

<p>On application for mandamus.</p>

<p>1. The legislature cannot bestow upon the common council of a city the power to establish taxing districts within the city, narrower in extent than the city limits.</p> <p>2. The eighty-third section of the city charter of Elizabeth empowers the city to purchase lands at tax sales, for a period not exceeding fifty years. This term is not enlarged by section 22 of the act of 1873, page 778; that provision applies only to purchasers other than the municipality.</p> <p>3. The errors in the assessment may he amended under the act of 1881, page 194. Bev., p. 1172, U 147, 148.</p>

<p>The complaint of the overseer of the pool, under section 5 of the act concerning disorderly persons, must contain the averment that, by reason of the desertion, the township may become chargeable, and to justify conviction, that allegation must be established at the trial.</p>

<p>On certiorari to Union Pleas.</p>

This writ brings up au assessment for regulating and grading River road, in the city of Passaic, made by Adrian Hopper, Alfred Speer and John Hermion, commissioners appointed by this court, upon lands of Benjamin Aycrigg, Benjamin B. Aycrigg and John H. Pell, trustees of Thomas Gardner, and lands of B. B. Aycrigg and Alleta M. Hegeman.

<p>On certiorari bringing up a judgment in the Court of Common Pleas from a justice’s court, in an action for damages for a breach of a warranty . in the sale of a horse—Held, that there was evidence to support the finding of the Court of Common Pleas that the damages resulting from such breach, if existing, had been satisfied by the terms of a resale of the horse to the warrantor.</p>

This is an application by Patrick Sheridan, collector of the county of Union, for a writ of mandamus commanding the common council and the treasurer of the city of Rahway to pay over to the said county collector certain moneys alleged to have been received by said treasurer on account of taxes levied by the authorities of the city of Rahway.

On certiorari to the Court of Common Pleas of Sussex county, to’review a judgment on appeal from a justice’s court. The state of the case agreed on shows the following facts: The defendant, Charles Roe, Jr., was tax collector of the township of Erankford, in the county of Sussex, during the year 1876.

On eertiorari to the Court of Quarter Sessions of Somerset county. An appeal was taken by Tewksbury township from an order of removal of a pauper, Simon Van Liew, to that township from Branchburg township.

On motion of a codefendant for control of a judgment paid by him under section 36 of the Practice act, on return of a rule to show cause and proofs.

<p>1. Legislative acts providing for a review and re-assessment of damages and benefits to land-owners in public improvements will be liberally construed to favor such re-assessment.</p> <p>2. Every legal intendment will be made against prosecutors who have the benefit of the improvement, and make no objection until after the final remedial assessment is made and confirmed.</p> <p>3. An act providing for the re-assessment of damages and, benefits in laying, opening and grading two roads included in a scheme for improving any locality, is not unconstitutional because it embraces more than one object.</p> <p>4. Writ will be dismissed for delay in prosecution.</p>

On certiorari to the defendants to review an ordinance entitled “An ordinance concerning inns and taverns and dealers in spirituous and malt liquors ” in the borough of’ Washington, dated May 9th, 1868.

<p>1. By the District Court act, a summons cannot be served on a non-resident of the city, beyond the corporate limits of such city.</p> <p>2. Clear and unambiguous expressions of intention, in a statute, will control a literal interpretation which is inconsistent with other and overruling provisions in the same statute.</p>

<p>1. The small cause court has jurisdiction where the damages laid in an action for tort do not exceed $200, although the trespass or injury may be to property of greater value.</p> <p>2. In the Common Pleas, on appeal, a party cannot set up, in abatement of the suit, a former action pending, unless the objection was taken before the justice.</p> <p>3. A judgment of a justice, appealed from and undetermined, cannot be given in evidence to bar recovery in another suit on appeal, for the same cause of action.</p>

The following are the facts in the case: Mary Ellen Couch and five children became in need of public relief at the township of Bedminster, in the county of Somerset, in November, 1880, and applied to the overseer of the poor of Bedminster, who gave them some relief, and at once notified the overseer of the poor of the township of Bernards, in the county of Somerset, that these persons, paupers, belonged to that township; the overseer of the poor of Bernards accepted the…

On certiorari to review the proceedings for improvement of Eairmount avenue, in Jersey City.

<p>1. Where the Court of Common Pleas of a county has jurisdiction to grant licenses under the act concerning inns and taverns, this court will not, on certiorari, review its discretion in granting or refusing license, or look into the facts upon which such discretion is exercised.</p> <p>2. Covenants in deeds not to sell intoxicating liquors on premises for which a license is sought, however they may bind the parties to such deeds, are no legal restraint upon the court in granting tavern licenses for the public convenience.</p>

<p>1. Where an offender is convicted on indictment and sentenced to the state prison, the costs of conviction are payable by the state, and cannot be collected from the county.</p> <p>2. The sheriffs are not entitled to demand from their respective counties, jail fees for receiving and discharging prisoners who have not been either convicted or acquitted on indictment.</p>

<p>It is no defence to municipal bonds in the hands of a bona fide holder for value, that the corporation treasurer charged with the duty of negotiating them, absconded with them, and fraudulently put them in circulation for his own benefit.</p> <p>Quaere, whether negotiable instruments which have never been delivered or issued by authority of the maker or his agent, duly authorized to do so, can be held to have any legal inception, and to be valid in the hands of a bona fide holder.</p>

On error to Bergen Circuit Court. The plaintiff in error brought suit on three bonds issued by the defendant in error in the following form : The Hackensack Improvement Commission. No. 29. $500.

<p>1. A record removed into the Supreme Court by certiorari remains there, in legal contemplation until remitted by order of the court.</p> <p>2. While it remains in court, a second writ of certiorari may issue, to bring in new parties, and errors may be assigned upon the record in court.</p> <p>3. Where interested parties are not before the court, it is proper practice to hold the proceeding until they are brought in, bnt judgment pro nounced as to those in court, is no bar to an adjudication upon th< same matter between new parties.</p> <p>4. Sale for taxes in the city of Newark set aside for defective notice under the charter to delinquents, affirmed.</p> <p>5. Supplement to act concerning taxes (April 9th, 1875,) held to be prospective only.</p>

On error to the Middlesex Circuit. This was an action for trespass for assault and unlawful imprisonment. The défendant, Cornelius Van Duyn, pleaded the general issue of not guilty to the declaration, which was in its usual form in trespass, for assault and unlawful imprisonment.

On error to the Supreme Court. The plaintiff in error is sheriff of the county of Atlantic. As such sheriff, he received a writ of fieri facias, issued out of the Supreme Court, on a judgment recovered by Disston against one George Strauck.

<p>In error to the Supreme Court.. Eor opinion of Supreme-Court, see 13 Vroom 435.</p>

<p>Where no monuments are referred to in a grant, and none are intended to be afterwards designated as evidence of the extent of it, the distance stated therein must govern the location.</p>

In the matter of costs. McFarland, the plaintiff below, recovered a judgment in the Supreme Court in this suit upon the verdict of a jury. This judgment was removed to this court by a writ of error, sued out by the Lehigh Valley Railroad Company, the defendant below, and was reversed. The judgment was reversed on errors assigned to the charge of the judge at the trial. Lehigh Valley Railroad Co. v. McFarland, 14 Vroom 605.